[will, validity of – undue influence]

Underwood v. King

Supreme Court of Van Diemen’s Land

Pedder C.J., 16 December 1834

Source: Colonial Times, 23 December 1834

            Before His Honor the Chief Justice and a Special Jury

            The Jury were composed, with one or two exceptions, of the same gentlemen that tried the case of Morrison v Swanston, reported in our last.

            Mr. Gellibrand and Mr. Horne for the plaintiff, and the Attorney General for the defendant.

            This was an action brought by the plaintiff to try the validity of a will. The circumstances out of which the action arose were as follows: The late Rev. Mr. Yaldwin had been for some time previous to his death, residing in a house the property of the plaintiff, and was in the constant habit of frequenting the plaintiff’s house on terms of intimacy. Some few days previous to his death, he was taken ill near the plaintiff’s house, where he was going to dine, as was his custom every Sunday, and was conveyed there at his own request, instead of to his own residence, and where he made the will in favour of the plaintiff, which was the subject of the present action, as was alleged by the defendant while under the influence and undue control of the plaintiff.

            Lachlan Reynolds examined by Mr. Horne. - Keeps a public-house in Melville-street; did not know the late Mr. Yaldwin by name; knew him by the title of “the Doctor” only; about the month of July last witness met a man who was nigh falling down in Melville-street, and accompanied him to Mrs. Underwood’s, where he said he was going to dine; did not know him by the title of doctor at that time; took him there at his own request.

Cross-examined. - Thought the gentleman at the time was in a dying state; he must have known what he was doing, as Mrs. Underwood, on their arrival, said he had previously promised to come to dinner.

            By a Juror. - Has seen Mr. Yaldwin frequently going towards Mrs. Underwood’s. but has not seen him enter the house.

Edward Pilkington examined. - Is surgeon to the 21st regiment; has been in the habit of attending the family of Mrs. Underwood since February last; on the 8th of July last witness was called to attend the late Mr. Yaldwin; had seen him frequently before that inside of Mrs. Underwood’s bar; when witness was called upon, he found Mr. Yaldwin very unwell lying up stairs; witness directed his clothes to be taken off, and himself to be put to bed; witness saw Mr. Yaldwin after the was put to bed; he was then labouring under a nervous fever; Mrs. Underwood requested witness to ask Mr. Yaldwin if he had any affairs to arrange; he said he had none; from the life witness understood Mr. Yaldwin to lead, he said that it was a precarious case, and asked Mrs. Underwood if she wished for further advice; Mrs. Underwood said, no; but requested witness would pay ever attention in his power.

            Mrs. Underwood said the deceased was in her debt to the amount of £100, and requested witness to ask Mr. Yaldwin if he had any affairs to arrange as she might possibly get her money; witness told Mrs. Underwood that he thought the best way would be for Mr. Yaldwin to give her some acknowledgement for the amount; witness did not see Mr. Yaldwin after prescribing for him that day. Mr. Yaldwin answered witness’s questions quite rationally, but he appeared very low in consequence of his disorder; visited Mr. Yaldwin about nine the following day, and found him rather worse; Mrs. Underwood told witness that Mr. Yaldwin had agreed to give her an acknowledgment, and she waited for a young man to draw the note of hand; witness, at Mrs. Underwood’s request, waited also .The young man came soon afterwards, and the note was drawn. Mr. Yaldwin, as it appeared to witness, read the note over twice in his own hand, and made an observation relative to his name not being spelt as it should be he told witness how his name should be spelt, and pronounced the letters; but witness did not distinctly hear them; witness told the young man who drew the note, that the name was improperly spelt, who said it was of no consequence. Witness afterwards presented a pen to Mr. Yaldwin, when, with the assistance of witness, he made his mark. Previous to handing Mr. Yaldwin the pen, witness asked him if it was all right - he said it was; witness believes that Mr. Yaldwin read the note: the note produced is the one Mr. Yaldwin executed; the note never left witness’s hand until it was witnessed by him. At the time Mr. Yaldwin executed the document produced, he was in a fit state of mind to make his will; Mrs. Underwood appeared to witness to be exceedingly kind and attentive to him; he certainly was not under any restraint; witness saw him the following morning; he was then sinking; he was perfectly sensible; there was nothing in Mr. Yaldwin’s manner to lead witness to suppose that his mind was affected. Mrs. Underwood told witness that on the previous day Mr. Yaldwin made a will in her favor; witness replied you are so far fortunate; Mrs. Underwood said she wished Mr. Yaldwin had been in that mind before witness went away on the previous day, as she wished to have him for a witness to the will; on the third day of witness’s attendance, he was sent for a second time to attend Mr. Yaldwin, and found him labouring under a severe low nervous fever, with dilated pupils, and stertorous breathing, and he was extremely low, in fact, death was then fast approaching.

            Cross-examined. - Had never any conversation with Mr. Yaldwin before - he was called in at the time of his fatal illness, so that with his previous habits witness was wholly unacquainted; cannot contrast his mode of speech during his illness with that to which he was accustomed during health; when witness first saw Mr. Yaldwin there was a general tremor upon him, with loaded tongue, inclining to a slight brownish appearance - dry at the apex, with dry skin, and pulse low and quick; it was not intermittent. There was also a good deal of nervous agitation; was not more than five minutes examining Mr. Yaldwin on the first interview. Mrs. Underwood requested him to ask Mr. Yaldwin if he had any arrangements to make relative to his property, and observed, it would come better from witness. Witness did so, and Mr. Yaldwin replied in the negative; does not recollect Mrs. Underwood asking the same question in a louder key; all Mr. Yaldwin’s replies were short; indeed, he appeared to be disinclined to speak. After the first visit, upon learning the general habits of Mr. Yaldwin, witness had very little hopes of his recovery - he had all that nervous agitation which drunkards generally have; believes his disease to have been produced by intemperance. Such a disease as that under which Mr. Yaldwin was labouring, is calculated to weaken the intellect; he died from the effects produced by drunkenness, or repeated intemperance; those habits, after long continuance, produce an impaired judgment and memory. Any disease affecting, peculiarly the nerves, does, in a corresponding degree, affect the judgment and memory. It is not a very difficult thing to say whether a patient, similarly afflicted, is, or is not, in a sound state of mind; had no conversation with Mr. Yaldwin other than what was relative to his disease, except what has been related; does not recollect seeing Catherine Brown in the room while witness was there; does not know in whose hand-writing the words, “Richard Yeoland, his mark” upon the note produced, is; does not think that the words “Richard Yeoland” were written when witness put the note into Mr. Yaldwin’s hand; will not be positive, whether they were or not; believes the name was written in the room, witness remarked to the persons in the room, that Mr. Yaldwin could not sign his name; witness forms his opinion, that Mr. Yaldwin was of sound mind from the correctness of his answers. To find the mind wandering, is a common symptom of Mr. Yaldwin’s disease; there had been no other symptoms of delirium tremens than nervous irritation; there was no delirium tremens when witness last saw Mr. Yaldwin.

By Mr. Gellibrand. - Did not treat the case of Mr. Yaldwin as witness would have done delirium tremens.

Edward Young examined. - Is clerk to Mr. Sarell; was so in July last; has been in the habit of making out accounts for Mrs. Underwood. In July last, witness was sent for to Mrs. Underwood’s, and drew out a note of hand for £80, which she said Dr. Yaldwin owed her. After the note was drawn, Mrs. Underwood, Dr. Pilkington and witness went up stairs to a room in which Mr. Yaldwin was lying; Dr. Pilkington asked Mr. Yaldwin whether he owed the sum mentioned in the note to Mrs. Underwood; Mr. Yaldwin took the note into his own hand - read it over, and said it was correct; Mr. Yaldwin’s name was not, at that time, on the note - it was afterwards placed on the note by Mr. Yaldwin’s direction. The note produced, is the one of which witness has been speaking; witness wrote Mr. Yaldwin’s name upon the note; Mr. Yaldwin said, that he was too feeble to write himself, and desired some one would write it for him. After the note was completed, it was left on the bed-room table; witness shortly afterwards left the room. Mrs. Underwood sent up stairs again, and in about half an hour Mrs. Underwood told witness that Mr. Yaldwin wished to have his will made; witness fetched Mr. Sarell, who shortly afterwards came and asked Mr. Yaldwin, if he did not require assistance in making his will, he replied “I do.” Mr. Sarell asked Mr. Yaldwin in whose favor it was to be drawn, he replied, “in Mrs. Underwood’s.” Mr. Sarell and witness then went down stairs and Mr. Sarell drew the will, leaving Mrs. Underwood in the room with Mr. Yaldwin. Mr. Sarell shewed Mr. Yaldwin the will, and read the contents over to him and then asked him if it was drawn in accordance with his wish, Mr. Yaldwin replied, “it is.” Mr. Sarell again particularly asked Mr. Yaldwin if he intended to leave the whole of his property to Mrs. Underwood; he replied, “I do.” Mr. Sarell then asked him to sign the will, he replied, “I cannot, but I will place my mark,” which he did.

Cross-examined. - I was in the habit of making out bills for Mrs. Underwood; does not go to the house frequently; Mr. Sarell is not an habitual drunkard. The note was laid upon the table upon which Mr. Yaldwin made his mark; does not recollect Mr. Yaldwin remonstrating against his name being mis-spelt; does not recollect telling Dr. Pilkington that the name being mis-spelt was of no consequence; has never seen Mr. Yaldwin intoxicated, either at Mrs. Underwood’s house or any other.

David Sarell examined. - Has known the late Mr. Yaldwin for the last two years; was sent for on the 9th of July last, to the house of Mrs. Underwood. On arriving, witness understood, that he was required to make a will for a gentleman, who was dangerously ill; witness was shewn up stairs, where he saw Mr. Yaldwin; witness asked if he (Mr. Yaldwin); did not require him to make his will - Mr. Yaldwin replied that he did - witness asked twice distinctly, how he wished to dispose of his property - Mr. Yaldwin said he wished to leave it to Mrs. Underwood; witness took the name Mr. Yaldwin from a note, which had been previously executed by Mr. Yaldwin; witness first saw the note in the bed-room; cannot say where the note was, when witness drew out the will, thinks it was up stairs. The will was written straight through, except at those parts where Mr. Yaldwin attaches his name, before witness went up stairs with it; the name written at length at the commencement of the will, witness must have taken from the note of hand. Mr. Yaldwin appeared to witness, to be altogether unbiassed by Mrs. Underwood; he did not appear to be under any restraint.

Cross-examined. - If witness had not considered Mr. Yaldwin to have been in a sound state of mind, he would not have made his will.

Catherine Lackay examined. - Was servant to Mrs. Underwood in July last, in the early part of that month, a gentleman was brought in very ill; Dr. Pilkington was sent for to attend him; he died a few days afterwards; the gentleman was Mr. Yaldwin; he did not reside at Mrs. Underwood’s; Mrs. Underwood asked him if he would not be more comfortable at his own place - he replied “Mrs. Underwood, would you turn me out now?” Mr. Yaldwin was in the habit of frequenting Mrs. Underwood’s, and always dined there on Sundays; he always appeared remarkably fond of Mrs. Underwood’s children.

John Pratt examined. - This witness corroborated the testimony of the last.

This was the plaintiff’s case.

The Attorney General addressed the Jury for the defendant. After nearly six hours had been consumed, he should trouble the Jury with very few observations, particularly as the plaintiff’s case had fallen very short of what they had been led to anticipate, still it was a duty he owed his client, to address to them a few remarks. If the Jury believed that the deceased was not of sound mind at the time the will was executed, he was satisfied they would find a verdict for the defendant, the effect of which would not be to put money in his pocket. He was not in a condition to prove, that a will had been executed by the deceased in England, it was presumed however, that there had, but in whose favour, he could not ascertain. It was an extremely probable circumstance, and he thought he should be able to prove the fact, that the deceased at the time of his death, was not in sound mind; he was known to be a man of most irregular and drunken habits, and the awful consequences had been the customary ones, viz. disease and death. He would read to the Jury a letter the deceased addressed to his sister, on the eve of his departure from England, for this Colony, and they would judge from that, whether, if he disliked her husband, he had any ill-will to her. He really believed that Mr. Sarell would not be guilty of the baseness of framing an improper will, or of being in any way accessory to such a proceeding, but there were those who would, and it was his opinion that undue influence had been used in the present instance.

Sophia Bowden examined. - Was acquainted with the late Mr. Yaldwin; has several times heard him speak of his family, the last occasion was about three weeks before his death. Has heard Mr. Yaldwin say, he did not like Captain King - but, if any thing happened, his sister and her family should have what he had. Heard Mr. Yaldwin say one day, that they had got him to make a will in England.

Cross-examined. - Witness, as the time the conversation alluded to occurred, kept the Lamb Inn, where Mr. Yaldwin would frequently call, and sometimes used to mention family affairs.

Mr. Thomas Young deposed to being employed by the late Mr. Yaldwin as his confidential solicitor, and that he was not consulted relative to his will.

John Bryant examined. - Knew the late Mr. Yaldwin; has seen him drunk three or four times; witness saw him on the evening of the day on which he died - he appeared to be in a dying state. Witness asked Mrs. Underwood if he might see him. Mrs. Underwood said “Yes,” and witness went up stairs. Asked Mrs. Underwood, on the Thursday evening, if Mr. Yaldwin had made a will - she said, he had not.

Cross-examined. - Is not quite certain whether it was on the Tuesday before his death, or on the day of his death, that Mrs. Underwood told witness Mr. Yaldwin had made no will. Has not seen Mr. Yaldwin drunk more than three or four times.

James Brown examined. - Was servant to the late Mr. Yaldwin; after dinner, Mr. Yaldwin went out and seldom returned until the evening, and then tipsy. Mr. Yaldwin was very frequently drunk.

Mr. Frederick Gardiner examined. - Is assistant to Dr Westbrook; saw, at Mrs. Underwood’s, on the 6th of July last, the late Mr. Yaldwin - it was on a Sunday evening. Witness found him in a very drowsy state. He did not, at first, reply to any of witness’s questions - but, in the course of ten minutes, witness had roused him sufficiently to make him understand what was said to him. Told Mr. Yaldwin he ought to be bled, which he refused, and witness went away. Witness saw him on the following morning, when he appeared evidently better, and told witness that he did not wish to have any medical attendance. He appeared to witness like a man recovering from the effects of liquor.

Cross-examined. - Mr. Yaldwin appeared perfectly sensible when witness last saw him.

Dr. Scott examined. - Has heard the evidence of Dr. Pilkington, and considers Mr. Yaldwin to have been labouring under fever produced by intemperance; from the state in which he was described to be on the Wednesday, he might be sensible at twelve o’clock, and not so an hour and a half afterwards. It is difficult in cases like Mr. Yaldwin’s to say, whether the person is really in his senses; it requires a close attendance to see when a person so situated is sensible, and when he is not so. Any disease arising from intoxication, peculiarly impairs the powers of the mind.

By His Honor. - Considers that a person afflicted as Mr. Yaldwin was, might answer such questions as Mr. Sarell and Dr. Pilkington put to him, and yet not clearly understand them.

Cross-examined. - A person labouring under low nervous fever may answer common questions, and still not be perfectly sensible. Questions relative to his will would be common questions or not to a man, according to the manner in which they were put; does think that a man labouring under a low nervous fever, might answer questions relating to his property, and still not be of sound mind. The questions put by Mr. Sarell and Dr. Pilkington are common questions answered simply.

By the Attorney General. - If the deceased had been asked such a question as “What property have you got?” that would have required reasoning, and would have indicated mind, if he replied to it.

Mr. E. P. Bedford examined. - Does not quite agree with Dr. Scott, as to the first question asked by Mr. Sarell of Mr. Yaldwin’s (viz. - if he (Mr. Yaldwin) did not require his assistance in making his will); witness considers that reason was necessary to reply to that; considers a person labouring under low nervous fever might answer such questions as those put by Mr. Sarell, and still not fully understand the importance of them. Such a disease as that described by Dr. Pilkington, is peculiarly liable to impair the reasoning faculties.

Cross-examined. - Considers that a certain degree of reason was in existence when Mr. Yaldwin replied to Mr. Sarell’s first question; a good deal would depend upon his having answered the question alone, or in connexion with others.

By His Honor. - Considers a man labouring under Mr. Yaldwin’s disease might answer such questions as Mr. Sarell put to the deceased, and yet not be able to reason upon them so as to protect his relatives and friends; Judgment and memory are two of the first faculties that would fail a man labouring under a low nervous fever; does not consider the answers Mr. Yaldwin gave indicative of sound judgment in a man labouring under his disease.

By Mr. Kemp. - Is aware that Dr. Pilkington considered him to be in a sane state of mind.

Mr. Gellibrand rose and addressed the Jury to the following effect - Courts of Justice under particular circumstances admitted medical opinions to be given in evidence, but the greatest confusion would inevitably prevail, if the opinions of medical witnesses were allowed to overthrow facts. He considered himself quite as capable of forming an opinion as to whether the deceased was of sound mind or otherwise, as medical gentlemen were, who invariably mystified the matter as to which of their opinions were required in Courts of Justice. Were stubborn facts like those which had been given in evidence, to be upset by the opinions of gentlemen who had never seen the deceased? The present case was important to every one of the Jury, for every one of them might delay to make that necessary document, a will, until thrown upon the bed of sickness, and if such a doctrine as the present was to be allowed, their property might be wrested from their children, or from those to whom they might will it, and be given to strangers. He confessed, he felt something like indignation to hear Dr. Scott give an opinion in direct contradiction to facts. The Jury had been asked with great gravity to allow the opinions of Dr. Scott and Mr. Bedford, to upset all the facts that had been adduced in evidence. He beseeched the Jury to pause before they sanctioned by their verdict any such doctrine. He took it upon himself to assert, that it was physically impossible if the Jury believed Mr. Sarell, that the deceased did not understand the questions put to him. It was quite evident that Mrs. Underwood had no improper control over the deceased, if she had wished to exercise any such, would she have allowed his servant to visit him as it had been sworn he did? Would she not rather have kept away every person likely to interfere with or frustrate her object. Was that he would ask, the conduct of a woman who knew she was not acting right? After the deceased had refused to make any disposition of his affairs, she naturally became anxious for her debt, which for a woman in the plaintiff’s circumstance, was a large sum. If she had even gone the length of saying, “Mr. Yaldwin, I have a large family, if you could think of me in your will, I should be very much obliged to you;” that he submitted under the direction of His Honor, would not have been exercising undue influence, but nothing like such evidence has been adduced.

His Honor in addressing the Jury, said, that the first question for their consideration, was whether the deceased was or was not of sound mind at the time he executed the will, and secondly, whether any undue influence was used by the plaintiff to induce the deceased to execute the will in her favor.

The Jury retired for a short time, and returned a verdict for the plaintiff - Damages 1s.